While it amazes me to say it, this year FIRE celebrates its ten year anniversary. Back in 1999, FIRE was founded by Alan Charles Kors and Harvey Silverglate to address a growing problem: the systematic violation of freedom of speech, freedom of religion, freedom of conscience, due process, and other basic rights on campuses across the nation. Since its founding, FIRE has secured 136 victories at 110 colleges and universities whose total student enrollment exceeds 2.3 million. Among these victories, FIRE is responsible for changing unconstitutional or repressive policies affecting more than 1.4 million students at nearly 70 of these universities.
To honor a decade of hard work and victories in the name of individual rights, FIRE will be hosting events all across the country throughout 2009, culminating in our 10th Anniversary Celebration in New York City in October. Stay tuned for more details about the upcoming events; we would love to see you this year as we take full advantage of our anniversary festivities to draw greater attention to the ongoing problem of rights violations on campus.
Amazingly, despite FIRE's remarkable record of victories in 2008, many colleges (including all of those on our Red Alert list) continue to show a shocking disregard for basic rights, established law, and the moral and philosophical principles of liberty. It is essential that in our tenth anniversary year, FIRE does everything it can to get the word out about abuses on campus, to reach a larger audience with our mission, to build coalitions to fight for liberty, and to recruit new students and faculty members to the cause in order to ensure that the decline in respect for individual rights on campus stops. FIRE's greatest hope is that the academy embrace both its role as a marketplace of ideas and its duty to provide rights to its students and faculty, but this can only be accomplished through increased exposure of existing abuses; education of faculty, students, and staff on the basic principles of liberty; and public demand for real, meaningful, and lasting reform.
FIRE has come very far in its mission from where we began ten years ago, and we could not have reached this point without the support of our friends and donors. We are pleased that we will be able to share the excitement of the coming year with all who have made it possible. I hope you will join me in celebrating FIRE's ten years of service and help us get the word out so that we can make 2009 the best year for liberty on campus since FIRE's inception.
Posted by Greg Lukianoff on January 5, 2009, at 04:26 p.m.
Since last June, we've reported on the progress of California legislation designed to protect college and high school journalism advisors from retaliation from school administrators angered by the content of student reporting. As we followed Senate Bill 1370, authored and sponsored by State Senator Leland Yee, we noted the significance of the problem the legislation sought to address. In June, I wrote:
While FIRE does not support, endorse, or lobby for legislation, we can attest to the clear need for the protection Bill 1370 would provide. Echoing the shameful instances of administrative retaliation against student newspaper advisors cited by Senator Yee's office, FIRE has seen examples of this form of de facto administrative censorship across the nation. Perhaps the most high profile abuse occurred at Kansas State University (KSU), where a newspaper advisor to the award-winning KSU Collegian was removed by university administrators after complaints about the paper's content. The advisor's removal sparked litigation, as two student journalists took the school to court arguing that the removal violated their First Amendment rights. Unfortunately, the Tenth Circuit Court of Appeals decided the case (Lane v. Simon, Nos. 05-3266 & 05-3284 (10th Cir. 2007)) against the students on a technicality, ruling that the student journalists lacked standing to pursue the case because they had graduated while the case was under review. FIRE joined an amicus brief with the Student Press Law Center requesting the Tenth Circuit to rehear the case, but the Tenth Circuit denied the appeal.
After surviving threats from the University of California and an extended budget standoff between Governor Arnold Schwarzenegger and the California State Assembly, we are pleased to report that the legislation, signed into law in October, takes effect today.
The law, now known as the Journalism Teacher Protection Act, prohibits school administrators from engaging in various forms of retaliation against journalism teachers, student media advisors or any other employee involved with a student publication on the basis of that involvement. We at FIRE are pleased to see California lead the way in working to protect the First Amendment rights of the student press and those faculty and staff who help teach students the value of a free press.
In a year where FIRE's Campus Freedom Network has more than tripled its membership, it's no wonder that FIRE's other programs have grown to meet the increased demand from students and faculty members intent on defending their rights. For example, in 2008, we distributed 13,912 of FIRE's Guides to Student Rights on Campus, a record number.
Distributing FIRE's Guides to Student Rights on Campus is one of our most long-term and effective programs, offering students and faculty a thorough explanation of their rights to free speech, religious liberty, due process, student fees, and the perils of thought reform. Anyone can download the Guides for free from FIRE's website in .PDF format, but students and faculty members may order free hard copies. The public can order hard copies through Amazon.com.
2008 made it clear that those both within and outside the academy are taking the threat to liberty on college campuses seriously and educating themselves on the limits of universities' power to censor.
Posted by Luke Sheahan on January 2, 2009, at 10:16 a.m.
I’m not sure what happened down in Texas in 2008, but administrators at several schools have been unusually cowardly about even the slightest challenges to their ideas of good order on campus. During the election season there was the Great Non-Riot of 2008 at the University of Texas at Austin (UT), where two students faced punishment equivalent to suspension or expulsion for posting political signs on their dormitory-room window, which inspired students across campus to vow to do the same in solidarity and in a noble exercise of the right to freedom of expression. Once student outrage reached a high enough volume, President William Powers Jr. lifted the ban on signs posted on dorm-room windows. As FIRE’s Will Creeley wrote in October:
[W]hat significant government interest does this dorm signage ban further? Graves [Jeffery L. Graves, Associate Vice President for Legal Affairs] seems to suggest that UT has a general desire to maintain an aesthetic order, rather than allow signs being “plastered around campus willy-nilly.” I’m not at all sure that this generalized desire for order counts as a significant government interest …
Then, shortly before Halloween, Temple College faced the horror of a quotation from Friedrich Nietzsche: “God is dead.” The line, posted in German on Professor Kerry Laird’s office door, was deemed some kind of religious harassment by Mark Smith, Interim Vice President of Educational Services and Chief Academic Officer. Smith wrote, “Simply posting a cartoon or note on a door that can be considered offensive, insightful [sic], and/or controversial is not a part of academic freedom and does not reflect well on Temple College and has the potential of creating a hostile or intimidating learning/work environment.” Smith had ordered that the posting be removed. Just days earlier, Lesley B. Keeling-Olson, then the Interim Director of the Division of Liberal Arts (she recently resigned), also had ordered that Laird remove a poster lampooning an Old Testament tale: “KIDS: DON’T FUCK WITH GOD OR BEARS WILL EAT YOU.” After FIRE intervened and pointed out that a variety of Christian sayings were posted around campus without facing any such censorship, President Glenda Barron reversed the censorship and announced to all faculty and staff that such censorship had been inappropriate.
Students at several other colleges in Texas, however, have not been so lucky.
In the spring, the South Campus of Tarrant County College (TCC) declared that wearing empty gun holsters, even during an officially sanctioned protest in the school’s tiny free speech zone, was too much for its fragile students to bear in this scary, post–Virginia Tech massacre world. TCC student Brett Poulos had notified administrators that his group would be engaging in an “Empty Holster Protest,” collaborating with Students for Concealed Carry on Campus (SCCC), a national organization that “supports the legalization of concealed carry by licensed individuals on college campuses.” SCCC promoted a coordinated national protest for April 2008 in which students would peacefully attend class and perform other daily tasks while wearing empty holsters to signify opposition to state laws and school policies denying concealed handgun license holders the same rights on college campuses that they are granted in most other places.
In an April 10 response Juan Garcia, Vice President for Student Development, “granted” Poulos’ request to stage a protest on the South Campus, but he changed the fundamental nature of the protest by banning the protesters from wearing empty holsters anywhere on the South Campus, including in the designated free speech zone. The tiny free speech zone on the South Campus, according to Poulos, is an elevated, circular concrete platform about 12 feet across. Poulos met with Garcia on April 18 and was told that TCC would take adverse action if SCCC members wore empty holsters anywhere, strayed beyond the campus’s free speech zone during their holster-free “empty holster” protest, or even wore t-shirts advocating “violence” or displaying “offensive” material.
Later, in a May 29 radio interview with the National Rifle Association on NRA News, Garcia explained that after the Virginia Tech and Northeastern Illinois shootings, students were “on edge,” so “any kind of equipment for guns” was something that TCC would not accept because it was “threatening” and would “disrupt our learning environment.” Garcia admitted that no students had said they were afraid of empty holsters and also said (seeming to contradict himself) that the VT/NIU incidents had “nothing to do with Brett Poulos.” Nevertheless, Garcia said, corralling the student protesters in the free speech zone was appropriate because “we want students in an area where we can provide security for both sides” and TCC would not allow protests anywhere on campus without knowing about it because that would just create an “open field” for anyone to protest anywhere.
It bears mentioning that TCC was the only public college in the country that banned empty holsters from campus during the nationwide protest.
If you think that case is nuts, take a look at what happened this fall at Lone Star College–Tomball, which used an even crazier rationale for censoring a tongue-in-cheek “Top Ten Gun Safety Tips” flyer during a student activities fair. After college officials banned the Young Conservatives of Texas (YCT) from distributing the flyer, the general counsel for the entire Lone Star College System invoked the specter of the Virginia Tech shootings, suggesting that even a “mention of firearms and weapons” is inherently a “material interference” with the school’s operations. The new group’s status as a student organization was even threatened simply because of the flyer, although recently FIRE learned that the group would be allowed to exist after all. We await word from school administrators, however, about whether the flyers will remain censored.
After we took a closer look at Lone Star’s policies, we realized that the state of liberty there is poor indeed. In fact, we named the Lone Star College System’s policies our Speech Code of the Month for December 2008. The most vague and overbroad of these policies, found in the system-wide Student Code of Conduct, prohibits any “vulgar expression” on any Lone Star College campus, including in electronic communications. This policy is unconstitutionally vague; students have no way of knowing what exactly is prohibited, since what is “vulgar” depends entirely on who is hearing or viewing the expression in question. It is also overbroad, explicitly prohibiting the very kinds of “vulgar” satire, parody, and social commentary that the Supreme Court has repeatedly held are protected by the First Amendment.
Knowingly or recklessly causing or attempting to cause by acts and/or threats, emotional, mental, physical or verbal harm to another person (which includes but is not limited to faculty, staff, students, visitors, etc.). This includes intimidation, emotional force, embarrassing, degrading or damaging information, assumptions, implications, remarks, or fear for one’s safety.
As FIRE’s Samantha Harris wrote at the time, this policy piles one vague proscription on top of another, making it difficult if not impossible for students to know what is actually prohibited—thus allowing the university to punish students for virtually any expression that someone else finds hurtful. The first vague prohibition is the prohibition on “emotional,” “mental,” or “verbal harm”—to say these phrases elude precise definition is an understatement. What, exactly, is emotional harm? Does emotional harm occur if a student feels hurt, insulted, or even simply miffed by another student’s speech? How is emotional harm distinct from mental harm? How are those two distinct from verbal harm? Compounding the problem, the policy follows up this vague prohibition with a set of equally vague examples of prohibited conduct, namely: “emotional force”; “assumptions”; “implications”; and, perhaps most bizarrely, “remarks.” How can the university conceivably regulate whether students make “assumptions” about one another? What kind of “remarks” are prohibited? And what is “emotional force”? Finally, the policy prohibits not only “causing” these harms, but merely “attempting to cause” them. The U.S. Supreme Court has held that laws must “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly,” or else they are unconstitutionally vague (see Grayned v. City of Rockford). Good luck figuring out this policy at Texas Southern.
If you’re from Texas and you’re feeling pretty good that you’re not from one of these schools, just wait. Texas A&M, Texas Tech, Rice University, and several other schools all have a “red light” in our database of speech codes. A red-light school has at least one policy that both clearly and substantially restricts freedom of speech. At public colleges, such restrictions violate the First Amendment. Come on, Texas, start defending individual rights!
Posted by Adam Kissel on January 1, 2009, at 04:52 p.m.
But as FIRE's Director of Legal and Public Advocacy, one victory in particular signifies to me both the great progress made in 2008 and the even greater promise of 2009: namely, the United States Court of Appeals for the Third Circuit's precedential ruling in DeJohn v. Temple University, 537 F.3d 301 (3rd Cir. 2008). In DeJohn, the Third Circuit became the latest federal court-and the highest ever-to strike down a speech code at a public university on First Amendment grounds, delivering a ringing affirmation of the special importance of freedom of expression on campus. Indeed, the Third Circuit's ruling means that FIRE's Speech Codes Litigation Project has yet to lose a constitutional challenge, securing victories at Shippensburg University, Texas Tech University, the State University of New York at Brockport, California's Citrus College, and San Francisco State University and the California State University System.
But before I analyze the ruling and discuss its implications, it's worth first covering the case's basic story and procedural history.
The facts of the case are relatively straightforward: Christian DeJohn, a graduate student studying Military and American History, also served as a Sergeant in Pennsylvania's National Guard. While working towards his Master of Arts degree, DeJohn was deployed to Bosnia-and while serving overseas, he received numerous anti-war e-mails from professors. After DeJohn complained, the e-mails stopped soon thereafter-but to his shock, DeJohn returned from his tour of duty to find that Temple had dismissed him from the university, the result of what the school claimed was a "computer error." After returning to his studies in 2003, DeJohn participated in vigorous but civil debates in class with professors about the Iraq War. Unfortunately, speaking his mind seemed to earn DeJohn a wave of negative consequences: his professors refused to advise him on his thesis, issued scathing critiques of his work without seeming justification, and ultimately delayed his graduation three times.
Feeling persecuted for his beliefs, DeJohn filed a federal complaint against Temple in February 2006 alleging retaliation, breach of contract, conspiracy to violate civil rights, violation of freedom of expression, and other charges. DeJohn's suit challenged not just his own treatment, but Temple's entire speech code, which prohibited "generalized sexist remarks and behavior," making free speech at Temple contingent on wildly overbroad and vague definitions. DeJohn was concerned that voicing his beliefs about the role of women in the military, for example, could be prohibited under Temple's policy. As long-time supporters know, FIRE was involved with DeJohn's case against Temple right from the beginning, as FIRE Legal Network member (and former FIRE President) David French filed DeJohn's complaint. (French is currently senior legal counsel for the Alliance Defense Fund and a First Lieutenant in the United States Army Reserve.)
During the course of the ensuing litigation, Temple actually altered its speech code, in what looked for all the world like a cynical attempt to evade judicial review. Nevertheless, the district court refused to dismiss DeJohn's case-and in March 2007, the district court issued a permanent injunction against enforcement of Temple's former code.
Rather than admit defeat, however, Temple appealed the district court's ruling to the Court of Appeals for the Third Circuit. On appeal, Temple argued that its former code was constitutional by invoking the Supreme Court's ruling in Morse v. Frederick-a decision upholding the very narrow right of high school administrators to regulate student speech "reasonably regarded as encouraging illegal drug use." Equating the rights of high school students to those enjoyed by college students, Temple argued that it had the right to place high-school restrictions on college students, contending that Morse gave the university the power to restrict any "student's speech that is inconsistent with its 'basic educational mission.'"
Finally, on August 4, 2008, the Third Circuit issued its opinion. In a clear victory for First Amendment rights on campus, the Third Circuit upheld the lower court's ruling that Temple's former speech code was unconstitutional. Writing for the majority, Judge D. Brooks Smith's powerful opinion held that "[d]iscussion by adult students in a college classroom should not be restricted." Because Temple's former speech code "provide[d] no shelter for core protected speech," Judge Smith found the policy to be facially overbroad. The Third Circuit's ruling couldn't be clearer: Temple's former policy violated the First Amendment rights of its students.
While we at FIRE were of course thrilled with the outcome for Christian DeJohn and students at Temple, what really excites me heading into the new year is the signal the Third Circuit's ruling in DeJohn sends to other public colleges and universities, both in the Third Circuit's jurisdiction (comprised of Delaware, New Jersey and Pennsylvania) and across the country: namely, that unconstitutional restrictions on student speech have no place in our nation's public institutions of higher education. Of course, as I discussed back in August in a piece for JURIST, DeJohn is just the latest ruling to send such a message:
[I]t's useful to remember the special niche public universities have long occupied in the Supreme Court's First Amendment jurisprudence. That the First Amendment's protections fully extend to the public university campus is settled law, as the Third Circuit's ruling acknowledges by citing Keyishian v. Bd. of Regents, State Univ. of N.Y., 385 U.S. 589, 605-06 (1967) ("[W]e have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government's ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment."); Healy v. James, 408 U.S. 169, 180 (1972) (citation omitted) ("the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, 'the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.'"); and Widmar v. Vincent, 454 U.S. 263, 268-69 (1981) ("With respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities.")
But shockingly, despite the fact that the case law couldn't be clearer, speech codes continue to flourish at schools across the country, as our report, Spotlight on Speech Codes 2009: The State of Free Speech on our Nation's Campuses, proves beyond question. This discrepancy prompts an obvious question: What gives? If the Supreme Court has consistently held that students at public colleges are protected by the First Amendment-as it has-and if federal courts across the country have consistently applied these holdings to invalidate speech codes in every challenge to produce an opinion over the past twenty years-as they have-why then do so many schools still maintain unconstitutional restrictions on student speech? Are school administrators and counsel for public colleges and universities simply ignorant of their legal obligation to uphold the First Amendment on campus, or are they willfully ignoring the law?
While it's impossible to know for sure, I think the answer may be a little of both. Somehow, despite the clarity of the law, many policymakers must not realize that their regulations restrict or chill speech on campus. And still other policymakers must just not care.
Either way, this is precisely why DeJohn presents such an exciting opportunity for FIRE. Because the Third Circuit's ruling so powerfully spells out precisely how overbroad and vague speech codes fail to pass constitutional muster, and because the Third Circuit is the highest court yet to invalidate an unconstitutional speech code at a public university, FIRE will use DeJohn to argue that ignorance of the law-either benign or calculated-is no longer acceptable, and continued ignorance will come at a cost. Indeed, we've already made precisely this argument to every public university in the Third Circuit that is rated a red or yellow light institution on Spotlight: The Campus Freedom Resource in a late September mailing. More will follow, until no public university president in the country can credibly claim that he or she did not know about a college president's obligations under the Constitution.
The Third Circuit's ruling in DeJohn is one of FIRE's proudest victories of 2008. Better yet, I believe it will spur still more victories in 2009.
Posted by William Creeley on December 31, 2008, at 03:26 p.m.
In our continued effort to reach new audiences and use every available resource to bring an end to abuses of liberty on campus, FIRE has joined Twitter. A fairly new social networking tool, Twitter allows users to engage in bite-sized global conversation.
While we explore the potential of this latest addition to our communications arsenal, we envision Twitter as another useful method of spreading the word about the pervasive disregard for individual rights at colleges and universities across the country. I strongly encourage FIRE friends who use Twitter to check out our profile page, follow us, and stay updated as we make use of this exciting new medium.
Posted by Brandon Stewart on December 31, 2008, at 12:16 p.m.
While FIRE works on cases from hundreds of schools in a given year, we have a special list for those schools that have shown unique intransigence in the face of criticism from FIRE for abusing student and faculty rights. We call that special list our Red Alert list, and right now five schools have earned a spot among the "worst of the worst." This summer, we decided to step up our campaign for reform at Red Alert schools by running a full-page ad in the 2009 edition of U.S. News and World Report's all-important America's Best Colleges issue, right next to the college rankings.
Unfortunately, another school has risen to take VSU's place. Earlier this month, Michigan State University earned a spot on our Red Alert list when it found a student guilty of "spamming" for sending an e-mail to a list of professors encouraging them to speak out in protest against the administration's decision to shorten the semester.
The other schools on FIRE's Red Alert list are:
Johns Hopkins University, for passing a rule banning disrespectful speech on campus after punishing a student for a Halloween invitation it deemed to be offensive;
Colorado College, for finding two studenst guilty of "violence" after they posted a parody of another group of students' flyer;
Tufts University, for refusing to overturn a harassment finding against a conservative magazine after it published true but unflattering facts about radical Islam;
Brandeis University, for finding a professor with nearly 50 years' experience guilty of racial harassment for using the term "wetback" in his Latin American studies class to both explain and criticize its usage (a decision for which Brandeis also would deserve the Philip Roth Award, if there were such a thing).This miscarriage of justice also earned Brandeis a "Muzzle" award from the Thomas Jefferson Center for the Protection of Free Expression this year.
Earlier this year, we outlined the relatively easy steps these colleges can take to get off the Red Alert list. We would be very happy to remove them if any of them would repudiate or undo their illiberal actions. However, if they remain stubborn about correcting their mistakes, they can count on being featured in a national ad campaign every year. The U.S. News and World Report ad was just the first in what we plan to make an annual practice, and we plan to bring these ads to a wider and wider audience each year.
Over at Phi Beta Cons, former FIRE President David French, recently back from a tour of duty in Iraq, reports that Georgia Tech has been ordered to pay $203,734.14 in attorneys' fees and expenses for violating its students' freedom of religion. Here's how David describes the case in his blog entry:
In March 2006 two brave Georgia Tech students, Orit Sklar and Ruth Malhotra, launched a challenge to several unconstitutional policies at the school. These policies included a speech code, a restrictive speech zone, discriminatory student-fee regulations, and a program of state religious indoctrination called "Safe Space" that explicitly compared those who have traditional views of sexual morality to slaveowners.
I blogged about this case when it was first filed back in 2006, and am happy to gloat about the fact that my prediction at the time was accurate: "Georgia Tech is not above the Constitution. Since it apparently didn't realize that before, the odds are good that it will be forced to do so now." Of course, anyone with a basic knowledge of the law and the facts of the case would have made the same prediction except, I suppose, for Georgia Tech's administration and lawyers, who through their subpar knowledge of the law have now managed to soak students and taxpayers for more than 200 grand. Nice work, guys.
The whole blog entry, which contains more facts of the case as well as nauseating details about Georgia Tech's conduct during the litigation, is well worth a read. But David sums it up well:
Unless Tech appeals this fee ruling, this litigation is finally at a close, and Orit and Ruth won. More precisely, the First Amendment won. Each and every student at Georgia Tech enjoys more liberty as a result of Orit and Ruth's stand.
In a time of economic trouble, it is shameful to see universities spend hundreds of thousands of taxpayer dollars in futile quests to defend blatantly unconstitutional policies. Do the people of Georgia really want to pay for oppression and double standards?
I know I wouldn't. The sad fact, though, is that more often than not the censors at state universities are paying for their own poor judgment and dishonorable impulses with your money. FIRE is doing its part to change that by putting university presidents on notice that violating the First Amendment could cost them money out of their own pockets, but that will take some time. In the meantime, this large fee award should send two important messages: First, it tells college administrators and boards of trustees that if they violate the rights of their students, they should expect to pay for it. Second, it demonstrates to the lawyers out there who might otherwise not be able to afford to take First Amendment cases that they can win good cases on behalf of their clients and expect to be paid for their trouble.
Posted by Robert Shibley on December 30, 2008, at 04:45 p.m.
December appears to be a tough month for civil liberties at Michigan State. For those who have been following Kara Spencer's "spam" case at MSU, you may be interested to learn that this is not the first time FIRE has been at odds with the university over the holidays.
In December of 2006, FIRE called for the end of MSU's Student Accountability in Community Seminar (SAC). SAC was designed as an Orwellian "early intervention" program, modeled after an approach used to combat domestic violence. Among the many qualifying offenses for admission into SAC was "obfuscation," defined as "obscuring, concealing, or changing people's perceptions that result in your advantage and/or another's disadvantage." This bewildering statement not only encompassed many types of protected speech, it also trampled upon students' sanctity of conscience. In practice, some of the many offenses that could land a student in SAC were slamming doors and rudeness to doormen.
The program mandated that students take "full responsibility" for their alleged crimes by using language approved by the administration in written statements accepting culpability. Furthermore, if students did not participate in SAC (which also involved a $50 fee), they had a hold placed on their account which prevented them from registering for classes the following semester.
As FIRE President Greg Lukianoff wrote in our initial letter to MSU:
At the heart of all concepts relating to freedom of the mind is a recognition of our own limitations—like us, those in power are neither omniscient nor omnipotent, and therefore have no right to dictate to others what their deepest personal beliefs must be. Concern for free speech and freedom of conscience is rooted in the wisdom of humility and restraint. The SAC program, which presumes to show students the specific ideological assumptions they need to be better people, crosses the boundary from punishment into invasive and immoral thought reform. We can conceive of no way in which the SAC program can be maintained consistent with the ideals of a free society.
Unfortunately, this was not the last we heard from MSU. In the past two years, we have had three cases at the university, most recently landing them on our Red Alert list along with four other schools that have shown consistent disregard for individual rights on campus. We hope that MSU will take the steps we have outlined in order to preserve the civil liberties of the campus community. If not, because sunlight issaid to be one of the best disinfectants, we will continue to work to ensure that the First Amendment is protected at MSU.
Posted by Claire Jenkins on December 30, 2008, at 04:17 p.m.
It's a difficult task encapsulating FIRE's efforts in 2008 in a single sentence, much less a single word. After all, the breadth of FIRE's victories on campus this year ranges from the exoneration of a student at Indiana University–Purdue University Indianapolis who was the subject of a disgraceful investigation stemming from reading a book with the words "Ku Klux Klan" in the title to securing the rights of an instructor at Temple College in Texas to display a quote by Nietzsche on his office door. In between, FIRE clarified the right to political expression at the University of Oklahoma in the days leading up to the presidential election and instigated the dismantling of Valdosta State University's unconstitutional "Free Expression Area."
But if there is a tie that binds some of FIRE's more outrageous cases from 2008, it can be found in a single word: violence. Perhaps this shouldn't come as a surprise. After all, the shocking and tragic shooting deaths of thirty-two students and faculty members at Virginia Tech in April 2007 were still fresh in people's minds when this past Valentine's Day a gunman opened fire in a lecture hall at Northern Illinois University, killing five students before killing himself. Understandbly, then, violence has been on the mind of college students and the administrators trying to protect them. Of course, real violence has no place in the academy and is dealt with accordingly by existing law. But then there is the more nebulous definition of "violence," which is used to squelch certain speech whose content has been deemed too charged for public consumption. In the name of protecting college communities from such "violence," 2008 saw the tragedies at Virginia Tech and Northern Illinois shamelessly exploited to suppress and punish protected speech. Colorado College was perhaps the worst offender.
The controversy at Colorado College started when undergraduate student Chris Robinson and another student created a parody of a flyer called "The Monthly Rag," which had been distributed pseudonymously by a group calling itself the "Feminist and Gender Studies Interns." "The Monthly Rag" featured a reference to "male castration," an announcement of an upcoming lecture on "feminist porn," and a primer on "packing" (i.e., pretending to have a phallus). In response, Robinson and the second student published their flyer, called "The Monthly Bag," under the pseudonym "The Coalition of Some Dudes."
As anyone can see from comparing the two flyers side by side, "The Monthly Bag" directly satirizes "The Monthly Rag," featuring, among other items, references to "tough guy wisdom," lessons on "chainsaw etiquette," and the shooting range of a sniper rifle. The publishers should have felt safe, knowing that satire is protected speech. (In Hustler Magazine, Inc., et al. v. Jerry Falwell, 485 U.S. 46 (1988), for example, the Supreme Court found that Hustler magazine's satirical—and to some no doubt highly offensive—ad suggesting that the Reverend Jerry Falwell had drunkenly lost his virginity to his mother in an outhouse was protected by the First Amendment.)
Colorado College President Richard F. Celeste, unfortunately, did not see things that way. Shortly after "The Monthly Bag" was posted, Celeste sent a campus-wide e-mail denouncing the flyer, saying that itincluded "threatening and demeaning content, which is categorically unacceptable in this community... Vigorous debate is welcome. Anonymous acts meant to demean and intimidate others are not." When Robinson and the other student turned themselves in soon after—per the e-mail's request—they were told that they had violated Colorado College's values of respect and integrity, as defined by the school's Student Code of Conduct, and that some in the community had interpreted their flyer as a threat against them.
Of course, Colorado College is a private institution, and thus not bound by the First Amendment. The school is free to institute such policies on student behavior, and students are free to attend or not attend the college in light of such requirements. But the college must live up to the promises it makes to its students, and the charges against Robinson are in stark contrast to the college's statements in support of freedom of thought and expression:
On a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful that it may not be expressed. Nothing in this Anti-Discrimination Policy should be construed to interfere with the academic freedom of all persons at the college to express and debate diverse ideas. Persons who object to the expression of certain ideas should generally counter with refutation, not demands for sanctions or disciplinary action against the person who has expressed the controversial ideas.
This statement is taken from Colorado College's Diversity & Anti-Discrimination Policy, and seems designed precisely to protect students and faculty from the kind of ordeal that Robinson and the other student faced. But after a trial that to the detached observer appeared heavily tilted against the two students—Associate Dean of Students for Academic Support Ginger Morgan, for example, actively solicited students willing to testify against the two defendants—Robinson and the second student were found guilty of violating the code of conduct policy on "violence" in a decision handed down by Vice President for Student Life/Dean of Students Mike Edmonds.
Edmonds claimed to understand the flyer's satirical intentions, and commended the two students for immediately coming forward when asked by Celeste
